Most, if not all, legal documents require notarization to make them legally binding. A notary public or notary is a government-assigned individual whose job is to authenticate important documents as they are being signed. These documents can include closing a deal on a home, transferring power of attorney, or opening a retirement account. This article will cover notary publics, notarial acts, notary journals, and who is permitted to view a notary journal under the law:
- What is a notary public?
- What is a notary journal?
- Electronic notary journals
- Laws pertaining to notary journals
- The future of notarization
1. What is a notary public?
A notary public is defined as a public official appointed by the state to help individuals authenticate identity and mitigate the risk of fraud. These individuals take a Jurat, which is an oath of office to fulfill their duties by verifying the authentication of documents with their own signature. This is done by leveraging personal knowledge and obtaining satisfactory evidence. They are tasked with witnessing the signing process of documents.
Their job is to ensure that the identity of the signer is authentic, the signer is willing to sign the document in question, and that they are aware of the following statement of the transaction or document.
Once the notary verifies the name of the person, the contents of the documents, the person signing the document, and the official signature or thumbprint, it is given a notarial certificate which they affix the document. It is important that the physical presence of the notary public is ensured when the signing takes place. The notary authenticates the document through a notary seal.
The documents which a notary can witness include; estate agreements, deeds, powers of attorney, affidavits, licenses, contracts, loan documents, and trust documents. Notary publics offer legal services that impact several institutions. These responsibilities include:
- Taking statutory declarations and affidavits
- Accepting acknowledgments conveyances such as deeds
- Protesting bills and notes of exchange
- Offering notice of foreign drafts.
- Completing real estate transactions
Notary publics can be different. Usually, common-law notaries can serve as a witness but do not have the legal right to offer advice. On the other hand, civil-law notaries refer to lawyers that have passed their bar exam. These notaries have the legal standing from the government to give legal advice to the client.
2. What is a notary journal?
Notaries are required, under the law, to keep a record journal until the expiration date of the provided services. These notary journals are an obligation that needs to be fulfilled by notaries to stay compliant with the law. This is done to have evidence at hand at all times.
There are certain instances when a signed document faces legal issues, and to resolve a dispute, a notary journal can come in handy. A well-maintained journal can help give critical evidence and facts related to the case.
The law requires clerks, all levels, and members of the judiciary to keep a journal of records for their notes. Similar is the case with notary publics. Therefore, it is critical that notaries keep an archive of their data. This is vital data and can serve as evidence if there are legal claims against the document.
A maintained journal gives its owner a factual account of their acts. The notary journal supports not only the notary but also the general public. The journal serves as a business record that can assist in legally verifying whether the notary properly conducted their services and in case of a notarial act.
3. Electronic notary journals
Electronic and remote online notarization had started to gain legal validity since 2012 when Virginia was the first state to recognize and authorize it. However, it wasn’t until 2019 that several other states realized the importance and need for remote online notaries.
After Virginia passed a statute, other states followed suit and drafted a law in line with Virginia’s own, which authorized remote online notaries to operate legally. The following principles were adopted under this legislation:
- Establishing “personal appearance” for purposes of RON in the form of electronic record
- Reliably establishing and authenticating the signer’s identity
- Verifying the location of the parties
- Keeping a record of all details
In substitute for the signer physically appearing, the laws pertaining to Remote Online Notarization allow two-way audio-video communication. The reason that physical appearance is required is so the notary can authenticate and verify the signer’s identity. The witness or notary needs to personally identify the signer’s identity before the signing takes place. The authentication process differs with respect to the state where the notarization takes place.
Under state laws, notaries are obligated to maintain a journal for their electronic notarization and create a backup copy. This is a type of notarial act that is required to be abided by. Depending on the state the notary operates in, there are specific guidelines on the contents of the journal and how often the backup needs to be updated, along with other specific requirements.
4. Laws pertaining to notary journals
Notary Agents must keep their journals confidential, whether in physical or electronic form. Under the notary law, notaries are not permitted to disclose notary records of a non-customer to an organization. This is because these records often also contain the personal information of the parties. This information can include the identification card number of credible witnesses, the notary’s commission number, contact information, mailing address, other types of identification such as a driver’s license, witness’s deposition. The federal law requires notaries to abide by the guidelines in place.
Organizations are required to protect the confidential financial details of their customers under the federal Gramm-Leach-Bliley Act (GLBA). The GLBA also obligates organizations to comply with set guidelines when inspecting entries from the notary journal that don’t involve their own customers. Notaries are bound by the law not to disclose their journals. The NNA suggests that agents refuse potential contracting companies to view their notary journals. The GLBA rules state that the agent is bound to protect nonpublic information.
Following are state-specific laws about who can access notary journals:
Under the Arizona state law (ARS 41-319[F]), notary journal entries that are public records can be viewed by any individual that can provide a written request. This request needs to include the person’s name, which was notarized, the type of transaction or document, and the time at which the notarization took place. Additionally, Arizona allows notaries to maintain a separate notary journal for acts not part of public records. Entries that cannot be classified as public records include journal entries containing information that is covered by the attorney-client privilege. Under Arizona state law (ARS 41-319[A]), notary journals that are classified as nonpublic records are the sole property of the Notary and need to be kept confidential.
If we look at California, the rules are more strict. Under Gov. Code 8206[d], notaries are not allowed to disclose the contents of their notary journals to anyone. The law states that the journal is the sole property of the notary. The only exception is the peace officer who requires your journal’s contents for criminal investigation or the country clerk who takes the journal at the end of the notary’s career.
Although the law has strict guidelines, Government Code 8206[c] permits notaries to disclose the information if a written request is presented. This request needs to include the person’s name, type of transaction or document, and the time at which the notarization took place. A notary must allow an employer to inspect entries that directly relate to their business provided that the notary is present.
Under the CRS Section 24-21-529, an individual can provide a written request to access a journal entry. This request needs to include the person’s name, which was notarized, the type of transaction or document, and the time at which the notarization took place. Once the request is received, the notary can provide a copy of the specific item representing the transaction. There is a notarial fee allowed that the requester must pay for the data.
Under the HRS 502-73 of the Hawaii law, notaries are required to allow inspection of their notary journal records by a responsible person without reward or fee.
Under COMAR 01.02.08.03E, a notary can charge requesters $2 for a certified copy of a notary journal entry. There is an additional fee of $1 if the individual wants a photocopy of the entry. This is stated in COMAR 01.02.08.03C.
Under GL 222 Sec. 22[g] of the Massachusetts state law, a notary journal entry can only be inspected without restriction if there is a specific court order or the Secretary of Commonwealth orders the Notary to surrender the journal.
Under the Mississippi state law, a notary must provide copies of journal entries to a person who presents a written request and pays the legal fee. Any individual is allowed to inspect an entry, as long as:
(a) the notary knows that person or they provide satisfactory proof of identity to the notary
(b) they sign a separate, dated entry in the notary’s journal
(c) they can clearly specify the type of document and name of the principal for the notarial acts
(d) they only want to see entries specified in the request.
The only exception, in this case, is a court order, or a secretary of state, which can permit unrestricted inspection of a notary journal. Under the MS Administrative Code Title 1 Part 5 Rule 5.17[A],[B], and [C], a notary can refuse access to a journal if they have reason to believe that the requester may have malicious intent with the information.
Missouri permits the inspection of a journal entry by law enforcement agents for an investigation, court orders, and by the secretary of state in the case of the notary’s suspension from the notary public commission. These exceptions permit unrestricted inspection under the RSMo 486.710.1 of the Missouri state law.
Under the NRS 240.120 of the Nevada state law, a notary journal is open to public inspection without qualification.
Under ORS 192.410-192.505 of the Oregon state law, notaries are required to disclose their journal entries under the public records law of Oregon. Furthermore, OAC 160-100-0430(6) states that if a notary is not a public officer, will not have to disclose the contents of their journal unless required by the department of state or attorney general.
Under 47 Pa.C.S. 319[g.1] of the Pennsylvania state law, a notary is required to provide a certified copy of their journal entry to a person who applies for it.
5. The future of notarization
The world is moving towards digital, and it is only fair that tasks such as notarization are also made electronic and remote. Paperless notarization can help organizations save costs associated with printing bulk documents and save storage space.
In addition, eNotary means that documentation is online and easily accessible to the concerned individuals of the organization. The proper security measures can protect the data and create an updated backup of the document. This may be difficult to do in the case of physical copies.
PandaDoc Notary is a great example of a notary service used by lenders for online notary signing and digital certificates. PandaDoc Notary enables thousands of lenders to notarize their electronic documents from the comfort of their homes without having to schedule visits and deal with paperwork.
PandaDoc Notary offers organizations an all-in-one platform to help them legally collect documents, get the electronic signature by the right person, notarize the sign and manage these notarized documents electronically.
This can be an excellent option for a business that requires recurring notarizations and needs to get it done swiftly. Learn more about how you can use this solution for your business. Request a demo.
A notary must have a journal of all the services they have provided and keep it safe. These journals are generally used if there is a legal issue, and the entries can be used as evidence. These journals are meant to be kept private, and access should be solely with the notary themselves. However, there are certain state laws that offer exceptions to this access, and it depends on where the notary operates from.
This is now becoming the case for electronic notarization as well. Enotary is gaining legal status, and several states around the US have legislation pertaining specifically to the acceptance of eNotary as legal practice.
That being said, as RON gets recognized, certain obligations come along with it. The commitment to create electronic notary journals and audio/video recordings in an electronic form will also be a part of this acceptance. Although this depends on the state that is under question, notaries are required to keep journal entries of their notarization process and store them safely and securely. The state law determines who can access electronic journals as well.